MANU/SC/0378/1968

Equivalent/Neutral Citation: AIR1969SC 258, 1969(17)BLJR392, 1969C riLJ520, 1968 INSC 156, 1968(1)PLJR102, [1969]1SC R387,
1971(1)SLR778(SC )

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 150 of 1968
Decided On: 18.07.1968
Krishna Ballabh Sahay and Ors. Vs. Commission of Inquiry and Ors.
Hon'ble Judges/Coram:
M. Hidayatullah, C.J., J.C. Shah, Vaidynathier Ramaswami, Vashishtha Bhargava and C.A.
Vaidialingam, JJ.
JUDGMENT
M. Hidayatullah, C.J.
1 . The Appeal shall stand dismissed, but there shall be no order as to costs. Reasons
for our judgment will follow. Stay order is vacated.
HIDAYATULLAH, C. J.:
2 . This appeal is brought against an order of the High Court at Patna, November 4,
1967, dismissing a petition under Arts. 226 and 227 of the Constitution. By that petition
the appellants sought a declaration that a notification of the Governor of Bihar
appointing a Commission of Inquiry under the Commissions of Inquiry Act, 1952, was
'ultra vires' illegal and Inoperative' and for restraining the Commission from proceeding
with the Inquiry. The High Court dismissed the petition without issuing a rule but gave
detailed reasons in its orders. The appellants now appeal by special leave granted by
this Court. After the hearing of the appeal concluded we ordered the dismissal of the
appeal but reserved the reasons which we now proceed to give.
3 . As is common knowledge there was for a time no stable Government in Bihar. The
Congress Ministry continued in office for some time first under Mr. Binodanand Jha and
then under the first appellant, Mr. K. B. Sahay. When the Congress Ministry was voted
out of office, a Ministry was formed by the United Front Party headed by Mr. Mahamaya
Prasad Sinha. The United Front Ministry also resigned on 25th January, 1968 and
another Ministry was formed by the Shoshit Dal headed by Mr. B.P. Mandal. This
Ministry also went out of office on March 22, 1968 to be succeeded by another headed
by Mr. Bhola Paswan Shastri. During the continuance of the Congress Ministry Mr.
Mahamaya Prasad Sinha helped by Mr. Kamakhya Narain Singh and his brother Mr.
Basant Narain Singh and others were in opposition- When the United Front Ministry
emerged these opponents became Ministers. The Ministry began to function from March
5, 1967. On March 17, 1967, the Governor announced in his speech that an inquiry
would be made against the conduct of some of the Ministers who had gone out of office
including the present appellants. It appears that the Council of Ministers then
constituted a Cabinet Sub-Committee on July 22, 1967 to make a preliminary
examination of the allegations and the materials relating to them. The upshot was a
notification issued by the Governor of Bihar under Section 3 of the Commissions of
Inquiry Act on October 1, 1967 by which inquiry was ordered against the appellants and
two others (Mr. Raghavendra Narain Singh and Mr. Ambika Sharan Singh). The
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Commission was directed to inquire into and report on the following matters, namely:
"(a) What was the extent of the assets and pecuniary resources owned and
possessed by each of the persons above-named, his family, relatives and other
persons in whom he was interested, (i) at the beginning and (ii) at the end of
the tenure of office or each of the offices held by him as aforesaid;
(b) Whether each of the persons above named, during the tenure of office or
offices held by him, obtained any assets, pecuniary resources or advantages or
other benefits by abusing and exploiting his official position or positions and
whether during the said period or periods his family, relatives and other
persons in whom he was interested obtained, with his knowledge, consent or
connivance, any assets, pecuniary resources, advantages or other benefits;
(c) Whether, and if so to what extent each of the persons above-named
otherwise indulged in corruption, favouritism, abuse of power and other
malpractices; and
(d) Whether, besides the persons above named, any other person or persons
holding official position either as a member of the Council of Ministers or
otherwise, during the aforesaid period, made illegal gains or indulged in
corruption, favouritism, abuse of power or other malpractices in like manner as
aforesaid."
Later the Government of Bihar decided on October 31, 1967 that clause (d) should be
deleted and it was so deleted. The notification went on to state further:
"Without prejudice to the scope of the inquiry, the Commission shall, in
particular, inquire into and report on the mala fide and corrupt conduct of the
persons above-named in relation to the following matters, viz.-
(a) Contracts for works;
(b) Grant of mineral concessions and issue and renewal of leases,
licenses, and permits, particularly with respect to mines, minerals,
forests, forest-products, non-ferrous metals, mills, generation and
distribution of electricity, ferries, transport, etc.
(c) Purchase and supplies of stores and materials.
(d) Appointments, transfers, promotions etc. of officers.
(e) Institutions and withdrawals of cases.
(f) Protection to criminals and corrupt officers.
(g) Remissions of Government dues, loans and taxes.
(h) Misuse of Government money and property.
(i) Acquisition, de-acquisition , settlement and lease of lands.
(j) Collection of money through check posts.
(k) Any other matter which may be brought to the notice of the

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 Commission in course of the inquiry."
The inquiry was entrusted to Mr. T. L. Venkatarama Aiyar, a retired Judge of this Court
The Commission was to enter upon its duties from November 6, 1967. On October 31,
1967 a petition was filed in the High Court at Patna. The High Court summarily
dismissed the petition on November 4, 1967. This appeal arises from the order.
4. Since no rule was issued by the High Court the allegations in the petition were not
controverted or admitted by the opposite parties. When the present appeal was filed
reliance was placed upon the affidavits filed with the petition and fresh affidavits were
also filed. Opportunity was afforded to the respondents to file affidavits in reply. An
affidavit in reply was filed by Abraham, Vigilance Commissioner, on behalf of
Government and respondent No. 5 on behalf of respondents 3-6. Separate affidavits
were also filed by appellant 1 on April 4, and May 2, 1968. We have considered all the
affidavits which find place on the record of the appeal.
5 . The arguments of the appellants in this Court were substantially the same as were
urged in the High Court. They are really two in number. Shortly stated, they are: firstly,
that the appointment of the Commission is a campaign of vilification for political gain
by a party in opposition and is based on personal animus against those who kept the
members of that party out of office. The argument thus attributes malice and mala fides
to the Governor's notification and abuse of the powers under the Commissions of
Inquiry Act for an illegitimate purpose. Side by side there is the argument that a
succeeding Ministry cannot inquire into the conduct of public and governmental affairs
of the Ministry that goes out. The second argument is that the Governor's term having
come to an end under the Constitution, he was functus officio and could not order the
enquiry contemplated by the Government lien in power.
6 . The second argument goes to the root of the matter and may, therefore, be
considered first. It was rejected by the High Court. Mr. M. A. Ayyangar, the Governor in
whose regime the notification was issued, was sworn in as Governor of Bihar on May 6,
1962. Under Article 156(3) he could hold office for a term of five years from the date on
which he entered upon the office, that is to say till May 5, 1967. Therefore, the
contention is that his continuance in office was illegal. The respondents rely upon the
proviso to Article 156(3), which says:
"Provided that Governor shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon office,"
and point out that there cannot be an interregnum in view of the provision of Article
153 that there shall be a Governor for each State. In reply Mr. A. K. Sen refers to the
provisions of Article 160 which makes provision for contingencies by laying down:
"160. Discharge of the functions of the Governor in certain contingencies.
The President may make such provision as he thinks fit for the discharge of the
functions of the Governor of a State in any contingency not provided for in this
Chapter."
His contention is that under the third clause of Article 156 the Governor's term is a
closed term and if the term comes to an end without the successor, being named, the
provisions of Article 160 must be used. The proviso, according to him, covers only the
time lag before the successor enters office and not a case where no successor is
appointed before the term of the holder is over. To hold otherwise, he submits, might
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enable the appointing authority to set at naught the provisions of the main clause
through the proviso. By way of analogy he refers to Arts. 56 and 62(1) in respect of the
President and Arts. 67 and 68(1) about the Vice-President which enjoin that the election
to fill the vacancies has to be completed in each case before the term ceases. He
contends that the same result is implicit in the scheme of things in relation to the
Governor because of the distinction between 'appointment and 'entering an office."
7. We are unable to accept the contention. There is no provision such as Article 62(1)
or 68(1) in the scheme of the Governor's appointment. On the other hand, the proviso
to Article 156(3) contemplates that the Governor is to continue to hold office
'notwithstanding the expiration of his term.' The effect of these words is to exclude all
questions of the legality of the holding of office by a Governor after the expiry of his
term. There must always be a Governor under Art 153 and the interregnum is . avoided
by the proviso. It is, of course, to be expected that a new Governor will be nominated
betimes but circumstances may come into being which may take the holder beyond his
five years' term without a successor being named. It may not always be possible to
appoint a Governor within the term of the incumbent. Suppose, for instance, a person is
designated within the five years and he intends joining after a few days. Mr. Sen
concedes that the former Governor may continue to hold office till the new Governor
assumes charge and this may take the former Governor beyond his term of five years.
Suppose after that term is over the Governor designate declines the office. There will
immediately be an interregnum. No doubt the provisions of Article 160 may be resorted
to but even that may not be sufficient to prevent an interregnum. Therefore, it is
legitimate to hold that a person once appointed a Governor continues to hold that office
till his successor enters upon his office. This successor may be appointed under Article
155 or an order may be made under Article 160. Whatever the position the former
Governor continues to hold office till the new Governor enters his office. For these
reasons we hold that Mr. M. A. Ayyangar acted validly as Governor on October 1, 1967.
We may however, say that there may be cases in which neglect to appoint a Governor
soon may lead to an inference of failure to act under the Constitution and it may require
further examination as to the remedy in such cases. As we do not view this case as
satisfying the need for such examination we say nothing about it- No facts bearing upon
the failure to designate a successor have been pleaded here.
8 . This brings us to the main question. As we pointed out above the first argument
consists of two limbs. We shall examine them separately. The contention that the power
cannot be exercised by the succeeding ministry has been answered already by this Court
in two cases. The earlier of the two has been referred to by the High Court already. The
more recent case is P.V. Jagannath Rao v. State of Orissa, (Civil Appeals Nos. 1148-
1150 of 1968, MANU/SC/0013/1968 : [1968]3SCR789 . It hardly needs any authority
to state that the inquiry will be ordered not by the Minister against himself but by some
one else. When a Ministry goes out of office, its successor may consider any glaring
charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a
law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny.
The High Court has adequately dealt with this point and we see no error.
9. The next limb of the argument is that the inquiry is the result of malice and political
vendetta and the grounds are false and scurrilous. In the affidavit of Abraham reference
is made to the charges which have been drawn up against the appellants and 2 others
(who were also heard by us). These charges number 74 against the ex-Chief Minister
(Mr. K. B. Sahay) and 36, 19, 42, 10 and 11 against the others. Some of the charges
are interconnected. Mr. Sahay in his affidavit of May 2, 1968 has attempted to establish
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that Abraham himself had given a different version in his reports and had found nothing
wrong where he now finds fault. A few of the charges are attempted to be controverted
also. Request is made that the relevant files be summoned so that the falsity of the
charges may be established.
10. We find ourselves unable to accede to the request for summoning the relevant files.
The reason is fairly obvious. Once we have held that the inquiry is legal, it is manifest
that the truth or otherwise of the allegations is for the Commission's consideration. If
the disproof of the allegations is so simple, there should be no difficulty in bringing the
facts to the notice of the Commission. We have no doubt that our former colleague, who
heads the Commission, will be able to decide the issue as we are invited to do.
11. We have read the charges which are to be investigated. We do not wish to say
anything about the merits of these charges since what we say is likely to have a bearing
one way or another upon their truth. This matter is not in our hands, nor are we in
possession of all the materials on which these charges will hereafter be attempted to be
proved or disproved. We can only say that (as we see them) each charge refers in detail
to events with dates, names of persons concerned, particulars of the action taken and
the conduct which is to be considered. The charges are such that we think an inquiry
can be ordered. Whether they are true or false is another matter.
12. It cannot be stated sufficiently strongly that the public life of persons in authority
must never admit of such charges being even framed against them. If they can be made
then an inquiry whether to establish them or to clear the name of the person charged is
called for- If the charges were vague or speculative Suggesting a fishing expedition we
would have paused to consider whether such an inquiry should be allowed to proceed.
A [perusal of the grounds assures us that the [charges are specific, and that records
rather than oral testimony will be used to establish them.
We agree with the High Court that the affidavit in opposition make out a sufficient case
for inquiry.
1 3 . It is contended that clause (d) was excluded from the notification so that the
inquiry might not recoil upon those who had started it. Reference is made to the
notification of March 12, 1968 to show that in the notification ordering inquiry against
Mr. Mahamaya Prasad Sinha and his colleagues that clause is included. That should be a
matter of satisfaction to the present appellants. It is unlikely that the Commission will
overlook evidence which points to corruption or malpractice in others. Even if no direct
finding is given there will be ample reference to these matters in the report.
14. Finally it is argued that the action is mala fide. This can only be decided if it can be
held that the allegations were false. The Commission will first find the facts. Whether
they lead to the conclusion that the inquiry was Justified or it was malicious, cannot be
said just now, when there are only allegations and recriminations but no evidence. If
the charges have been made maliciously or falsely, we are sure the Commission will say
so, where necessary. We cannot anticipate the inquiry and hold one ourselves.
15. These reasons impelled us to order the dismissal of the appeal which order we
formally pronounced earlier.
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